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Friday, Nov 15, 2019

Lost innocence

The media has no right to usurp functions of court and pronounce on suspect?s guilt, writes AG Noorani.

india Updated: Jun 27, 2006 04:01 IST
By AG Noorani
By AG Noorani

The media have a right and a duty to investigate into and comment on the integrity and efficiency of police investigation of crime. They have no right to usurp the functions of the court and pronounce on the suspect’s guilt. That is contempt of court and a violation of his right to a free trial; a competing, but overriding, right and public interest.

The media abdicated their duty in Jessica Lall’s case. You did not have to be KPS Gill to discern that investigation was being botched up from day one. Had the media bestirred themselves, the damage might have been repaired in time. In the Rahul Mahajan case, the media are guilty of excess. It is a sad state of things when a TV anchor feels free to ask a lawyer whether his client had taken drugs or not, “Tell us something to show that he is innocent.” That is a plea to enter in court, not before TV. But, why was the lawyer there?

It is little realised that this practice violates professional norms fundamentally. Lord Justice John Singleton stated without qualification in his classic, Conduct at the Bar, “No advocate, in any circumstances, should ever permit himself to assert his own belief on the merits of the case which he is arguing or in the innocence of the prisoner whom he is defending. The moment he does so, he steps outside his role of advocate” -- and becomes a PRO.  In 1998, the Master of Rolls, Lord Woolf, said, “The defendants are entitled to have the issues involved determined by the courts without improper interference with the administration of justice. The situation is one in which it is easy to fan emotions that will make the task of the courts -- to resolve the complex issues involved and do justice between the parties -- more difficult.

“Extra-judicial statements by legal representatives can be especially unhelpful since they are likely to be received by the media as specially authoritative even if they are inaccurate. The professionalism and the sense of duty of legal advisors who conduct litigation of this nature should mean that the courts are able to rely on the legal advisors to exercise great self-restraint when making comments to the press, while at the same time recognising the need for the media to be properly informed of what is happening in the proceedings.”

Possible cooperation and an absence of excessive adversarial behaviour on the part of the legal advisors of all parties is essential if multi-party litigation such as this is to be conducted in the proportionate manner that the interest of their clients and justice require. Law correspondents are there to report the proceedings. As the BBC’s law correspondent does outside the royal courts of justice. Lawyers need not go before TV cameras on the grounds of the Supreme Court.  Correspondents can be briefed by lawyers on complexities if the correspondents so desire.

The biggest offender is the police. Its officials hold press conferences to announce the arrest of a ‘Naxalite’ or ‘terrorist’ and even present him to the media. Interviews are arranged in jails and ‘confessions’ by the hapless man are telecast. In 1995, the French Minister of the Interior, who held a press conference with police officials in which they named a man as one of the instigators of the murder of an MP, was ordered by the European Court of Human Rights to pay him 2 million French francs for violating a human right -- the presumption of innocence.

Investigative journalism and the TV came well after the Contempt of Court Act, 1971. Earlier, the law operated when proceedings became ‘imminent’. Rejecting the recommendation of the Sanyal Committee, Parliament made the law operable only when a chargesheet is filed or when the court issues summons or warrant. Comment is free during the entire course of police investigation, even if it poisons “the fountain of justice before it begins to flow” (Ss.2[c][ii], 3 and Explanation to S.3). If a private complaint is filed, the Act operates when the court takes cognisance. Applying this principle, it would be but fair to make the Act operable from the time of arrest or when criminal proceedings become ‘active’, as the Bombay High Court suggested in 1973.

Right now, we sail on uncharted seas in an “atmosphere of a Roman Holiday for the news media”, as an American judge put it. It is free to air evidence inadmissible in court, regale its patrons with the suspect and the witnesses’ past, including past convictions for crime that no prosecutor can cite in court. An Australian court hauled up a radio station for contempt for suggesting that the arrest of a particular suspect marked a successful conclusion to police investigations -- something our police and TV channels revel in merrily.

Equally culpable are assertions of innocence of the suspect. The Premier of New South Wales was fined £ 25,000 for contempt when he told the press, apropos a judge awaiting trial, that he had “a deep conviction” that the judge was innocent.

If there is a substantial risk of prejudice, it does not matter that the daily had exposed a conspiracy and cooperated with the police. Asghar Mahmood unearthed a conspiracy and informed the police, which decided to widen and prolong the probe. But News of the World did not wait. Its help was acknowledged. So was its interference with justice. It was fined £ 50,000.

CJ Miller, an authority on contempt of court, makes a fair comment, “It is unrealistic to expect a newspaper simply to hand over its material and publish it only after the conclusion of the trial. The business is a highly competitive one and scoops have commercial value. If it publishes it without alerting the police, the suspects might well vanish, but in all probability it will not commit a strict liability contempt. However, if it alerts the police, who then arrest the suspects, the danger of committing a contempt by publication is clear.”

The solution lies in recognising ‘the public interest’ as a valid defence. Publication of the photograph of a dangerous suspect on the run is a service, not a contempt. The media have rendered services in exposure of fraud, corruption in police and perversion of investigation. But one must recognise the potentiality of conflict to the harm of the public interest.

In the Sixties, David Frost exposed Savundra’s frauds on TV. This warned off many small investors who would otherwise have lost their savings. He was, nonetheless, severely criticised by Lord Justice Salmon in the appeal court for endangering Savundra’s fair trial on charges of conspiracy to defraud. This is a risk inherent in the game unless the media, the Bar and the police draw up rules, based on modern realities, for incorporation in the Act of 1971.